Editorial: GCSB law demands clarification

Over the years, the bungling of spy agencies has made many of them figures of fun. It may now be tempting to add the Government Communications Security Bureau to that list. The report by Cabinet Secretary Rebecca Kitteridge reveals an excessively secretive agency staffed by poorly performing box-tickers, some of whom are tolerated only because sacking them would pose a security threat. But this picture of incompetence becomes far from a joke when that same agency may have unlawfully gathered intelligence on 88 people besides the internet tycoon Kim Dotcom.

Ms Kitteridge makes it clear, however, that these serious breaches of privacy rights are not the responsibility of the GCSB's plodding foot soldiers. There was, she said, no evidence that its agents acted in bad faith. Instead, the bureau's transgressions were the product of confusion arising from the 2003 GCSB Act, the sole source of authority and law within the agency. Its shortcomings were magnified by failures of oversight by successive GCSB directors, Inspectors-General of Security and Intelligence, and prime ministers Helen Clark and John Key.

The nub of the problem lies in the act's statement that the bureau may not "take any action for the purpose of intercepting the communications of a person ... who is a New Zealand citizen or a permanent resident". This created problems when the GCSB did specialist work on behalf of other agencies, in particular the domestic spy agency the Security Intelligence Service. It believed the prohibition contained in the act did not apply if it was acting under the legal authority of SIS warrants.

In response to the report, the Labour Party is seeking an independent review of the country's spying network. There is no need to go that far. Ms Kitteridge notes that New Zealand needs the bureau "now more than ever". It makes sense for it to be allowed to provide specialist help to other agencies. The best course, therefore, is for the Government to ensure the GCSB Act is rewritten so that such assistance is no longer the subject of interpretation and there is no potential for illegal surveillance. The law governing the bureau must be clear, concise and future-proofed in terms of technology.

Further, Ms Kitteridge confirms the obvious need to establish better oversight of the GCSB's operations. It took until May 2012 for the present Inspector-General of Intelligence and Security, Paul Neazor, to question whether the long-standing interpretation of the act was correct. In terms of this, it is surely no coincidence that inspectors-general have customarily visited the GCSB only four times a year, have worked reactively, and have been tied up with SIS work. Stronger monitoring by the watchdog, along lines similar to those in Australia, is essential.

Prime ministers, for their part, will always take a varying interest in the GCSB's work. A former agency director, Sir Bruce Ferguson, has noted that John Key "didn't really take much interest in the organisation". That is perhaps understandable - as unless a critical situation exists, much of the foreign intelligence supplied by the GCSB will be piecemeal and of peripheral interest. But it is regrettable and the Prime Minister needs to take his responsibility more seriously.

Sir Bruce has clashed with Mr Key over the qualifications of the present bureau director, Ian Fletcher. He insists the director should have a military or defence background. That may be desirable but is by no means compulsory. The long-standing problems identified by Ms Kitteridge provide their own commentary on the shortcomings of that policy.

It will, she suggests, take a year and a solid effort to address the culture at the bureau. It should take far less time for the Government to clarify the GCSB Act and address the failings of oversight. Anything less is untenable.